The Primacy of Society and the Failure of Law and Development
Brian Z. Tamanaha
Washington University in Saint Louis - School of Law
October 2, 2009
Cornell International Law Journal, Forthcoming
Washington U. School of Law Working Paper No. 10-03-02
Billions of dollars have been spent on law and development (or “rule of law”) projects around the world in the past two decades, focusing on judicial reform, legal training, constitution and code writing, legal transplantation, anti-corruption efforts, and more. In recent overviews, many participants and observers have deemed this effort largely a failure.
This essay focuses on surrounding social factors as the primary explanation for this failure. It begins by arguing that “law and development” is a misleading category and should not be seen as a “field.” The essay then examines three themes: legal development, law and capitalism, and the progressive law and development package. The ideas underlying each are elaborated, showing how surrounding social factors interact with each. The essay then argues that law and development projects are often run in a fashion that is flawed from the outset owing to a lack of familiarity with circumstances on the ground. It shows how Western law and development theorists from the right and the left have exported to developing contexts ideas taken from home that have potentially harmful consequences in different settings. The essay concludes that, while efforts to develop the rule of law are essential and must continue, law cannot carry the hopes of economic development or the progressive package. Functional alternatives to law should be supported or created when state legal institutions persistently fail.
Number of Pages in PDF File: 61
Date posted: May 22, 2009 ; Last revised: April 1, 2010